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Editor's Comments of the Day
In Shah v. INS, No. 98-70845 (9th Cir. August 15, 2000), the Ninth Circuit reversed the Board of immigration Appeals's denial of an asylum application. The court found the BIA's adverse credibility determination was based on impermissible grounds since the Petitioner's testimony was internally consistent and comported with her asylum application and the documents she submitted for corroboration. The court states its standard of review is deferential, then faults the BIA for engaging in conjecture and speculation to find "a legitimate articulable basis to question the Petitioner's credibility." The court then goes on to engage in conjecture and speculation in second guessing the seven reasons the BIA gave to agree with the Immigration Judge's (IJ) finding that Petitioner was not credible.
One reason the BIA gave to support the IJ's finding was that Petitioner's husband's death certificate listed the date of death as November 5, 1991, but was marked with an official stamp dated April 1, 1991. The court noted that, " 'minor discrepancies in dates that are attributable to?typographical errors' cannot properly serve as the basis for an adverse credibility finding." The court then goes on to speculate that a clerk may have failed to change the date in the stamp or that the certificate may have been pre-stamped. They could with as much basis have speculated that a pre-stamped blank form was used to create evidence to corroborate the case or that a forger relied on an April 1, 1991 stamp as his model.
Another reason the BIA gave for its decision to uphold the IJ's finding was that Petitioner testified that her husband had been employed full-time by a political party, but that his passport listed his occupation as accountant. Petitioner explained the discrepancy by saying that prior to 1984 her husband had worked as an accountant. The court not only found that Petitioner's husband having been an accountant in 1984 and listing it as his occupation in his passport was not inconsistent with his having been employed by a political party afterwards, it goes on to speculate that his role of fund raising for the party was wholly consistent with his having been accountant. The given facts state a visa was applied for and granted in 1991, but the year the passport was issued is not indicated. It is not clear that, "the BIA's determination that there was an inconsistency is unsupported by the record."
Precedent requires that the BIA's denial of asylum must be upheld if it is supported by reasonable, substantial evidence in the record. In this case the court accused the BIA of engaging in conjecture and speculation to find that Petitioner was not credible. They have done exactly the same in finding that she was.
Federal Register News of the Day
HUD Eligibility Restrictions on Noncitizens
The Department of Housing and Urban Development (HUD) advises the public that no HUD programs fall under the category
of "Federal means-tested public benefits" subject to Sec. 403 of the Welfare Reform Act, which places restrictions on
providing "Federal means-tested public benefits to certain legal aliens."
Cases of the Day
Ninth Circuit Reverses BIA's Finding of Adverse Credibility
In Shah v. INS, No. 98-70845 (9th Cir. August 15, 2000), the Ninth Circuit reversed the Board of immigration Appeals's denial
of an asylum application. The court found the BIA's adverse credibility determination was based on impermissible grounds
since the Petitioner's testimony was internally consistent and comported with her asylum application and the documents she
submitted for corroboration.
Judge Dissents to "Border Exception" of the Fourth Amendment
Judge Weiner in an August 10, 2000, full dissent
to USA v. Zapata-Ibarra, No. 99-50156 (5th Cir. May 19, 2000), argues
that the judiciary, by hearing cases based on warrantless searches and lack of reasonable suspicion or probable cause,
is perpetuating a "border exception" to the Fourth Amendment. In allowing and subtly encouraging federal agents to act
unreasonably the federal judiciary has accepted the proposition that the mission of preventing the entry of illegal aliens
in proximity of the Mexican border "justifies riding roughshod over the Fourth Amendment guarantees."
Immigration News of the Day
Canadian Gangs Support Migrant Smuggling
The Ottawa Citizen reports that Canadian criminal gangs, including aboriginal groups, have emerged as key players in the
international effort to smuggle Chinese migrants into North America.
According to the Orange County Register on the surface, both presidential candidates appear to be vying to see who can be more
immigrant-friendly either by saying very little or being vague about most immigration issues, reflecting the importance they
are placing on the increasingly powerful Hispanic vote.
Abuse of EB-5 Employment Creation Visa Category
Kenneth R. Timmons writing in the American Spectator offers his analysis of the reasons for the recent investigations of the
EB-5 employment creation visa petitions
leading to an indictment for fraud, money laundering and misuse of clients' money.
ILW.COM Highlights of the Day
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ILW.COM Chats and Discussions of the Day
Transcript of Chat with Barry Lieber, Esq.
If you missed the August 10, 2000, chat with attorney Barry Lieber it is not too late to learn. The transcript has been
added to the chat transcripts page.